A Guide to Appeals in the South Australian Planning System

Receiving an unfavourable decision on your planning application can be a difficult pill to swallow. Often months or even years of hard work has gone into a project only for the Relevant Authority (normally Council) to refuse the application. In many cases, the legal argument for refusal can be flimsy and the Authority may simply hope that an appeal isn’t lodged. It is often an educated guess from the Council or other Relevant Authority on the likelihood that the decision is challenged by the applicant. So what options do you have should a refusal be on the way or already issued?

Planning Consultant Review and Advice

At the first sign of a potential refusal, or if you are having significant challenges with your application, it would be wise to first speak to a planning consultant such as CPD. Quality planning consultants are well versed in the day to day operations of each Relevant Authority and will be able to identify whether or not the Authorities concerns are valid. Should the concerns be valid, the consultant will be able to assist you in adapting your application to be closer to the policy requirements and may offer unique solutions to cover for any unavoidable shortfalls. If the concerns are not valid, further documentation can be provided in support of your proposal to further reiterate to the Authority that your proposal is acceptable under the policies of the Planning and Design Code and related legislation.

Legal Review and Advice

Should the Relevant Authority still push back on your application, you may need further legal assistance. Your planning consultant will have a close relationship with a strong lawyer who is well versed in planning matters of the Planning, Development and Infrastructure Act 2016. A quality planning lawyer can assist in further identifying whether or not your proposal should be supported under the current legislation and whether or not the result of an appeal may be in your favour. Should they see a pathway to approval or favourable appeal, they will provide a clear strategy for both the applicant and planning consult to follow through to decision. Sometimes a refusal is unavoidable, but a lawyer can be integral to ensuring you have done everything possible to avoid it.

Review of Assessment Manager Decision – Council Assessment Panel

Should a refusal be issued there a couple pathways available to appeal the decision. If the application is determined by Councils Assessment Manager you may have the first option of appealing the decision to the Council Assessment Panel (CAP). This is an optional pathway that can be undertaken prior to appeal to the Court. The CAP is made up of independent members and most often at least one elected member. A report is provided to the CAP and they deliberate and decide on whether or not the Assessment Manager made the correct decision on the assessment of your application. The CAP then makes a determination to uphold or overturn the decision. This is a much cheaper option to take as a first step given an appeal to the CAP costs much less than an appeal to the court and is a relatively quick process. 

Appeal to the Environment Resources and Development Court

Should the Review of the Assessment Managers Decision fail, or the pathway for review not be taken or available, the next step would be lodging an appeal to the Environment Resources and Development Court of South Australia (ERD). This pathway starts with a compulsory conference where a commissioner of the court mediates an open conversation between the appellant and the Relevant Authority on potential compromises that may be available. Should this fail a full hearing is then required and a commissioner of the court will eventually decide to either uphold the decision or overturn the decision and issue an approval in your favour. This process can be very long and very expensive for appellants who will need to fund planning lawyers, planning consultants and potentially several other specialists in support of the appeal. The process can take several months or even years for a result either way to be realised.

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